2:14-cv-14898-TGB-MKM Doc # 1 Filed 12/27/14 Pg 1 of 20

Pg ID 1

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN
YOUNGS INCORPORATED, a Michigan
corporation,
Case No.
Plaintiff,
Hon.
v
PROVIDE CREATIONS, INC., a Delaware
corporation, d/b/a PERSONAL CREATIONS,
Defendant.
______________________________________/
TISHKOFF & ASSOCIATES PLLC
By: William G. Tishkoff (P45165)
And: Sarah L. Wixson (P76496)
And: Michael R. Wolin (P77038)
And: Christopher M. Vukelich (P76420)
Attorneys for Plaintiff
407 North Main Street
Ann Arbor, MI 48104
(734) 663-4077
______________________________________/
VERIFIED COMPLAINT AND JURY DEMAND
NOW COMES Plaintiff, Youngs Incorporated, by its attorneys, Tishkoff & Associates
PLLC, and states for its verified complaint against Defendant, Provide Creations, Inc., d/b/a
Personal Creations:
PARTIES
1.

Plaintiff, Youngs Incorporated (Youngs), is a Michigan corporation, with its

principal offices located in the County of Monroe, State of Michigan, and is a citizen of the State
of Michigan.
2.

Defendant, Provide Creations, Inc., d/b/a Personal Creations (Personal

2:14-cv-14898-TGB-MKM Doc # 1 Filed 12/27/14 Pg 2 of 20

Pg ID 2

Creations), is a Delaware corporation.

3.

Personal Creations has its principal offices in California and is a citizen of Delaware

and California.
JURISDICTION AND VENUE
4.

The instant action seeks a judgment and injunction against Personal Creations for

violations of the Copyright Act of 1976, 17 U.S.C. 101, et seq. (the Copyright Act) and
Lanham Act, 15 U.S.C. 1051, et seq. (the Lanham Act), unfair competition, trademark
infringement, breach of contract, unjust enrichment, and account stated.
5.

The amount in controversy in this matter, exclusive of interest and costs, exceeds

$75,000.
6.

Complete diversity exists between the parties, and this Court has diversity

jurisdiction over the subject matter of this action pursuant to 28 U.S.C. 1332.
7.

This Court also has original federal question jurisdiction over Youngs Copyright

Act and Lanham Act claims, pursuant to 28 U.S.C. 1331 and 1338, and supplemental
jurisdiction over Youngs remaining claims, as these claims are so related to the Copyright Act
and Lanham Act claims that they form part of the same case or controversy under Article III of the
United States Constitution pursuant to 28 U.S.C. 1367.
8.

This Court has personal jurisdiction over Personal Creations where Personal

Creations purposefully availed itself of the benefits and protections of the judicial district of this
Court; systematically and continuously conducts business in Michigan; and the initiation and
performance of the subject contract arose in the judicial district of this Court.
9.

Pursuant to 28 U.S.C. 1391(b)(2) and (3), venue in this Court is proper where a

substantial part of the events or omissions giving rise to the above claims occurred in the judicial
2

2:14-cv-14898-TGB-MKM Doc # 1 Filed 12/27/14 Pg 3 of 20

Pg ID 3

district of this Court and Personal Creations is subject to this Courts personal jurisdiction.
GENERAL ALLEGATIONS
10.

Youngs has operated its business since 1988, designing, developing and

manufacturing giftware, home dcor, fashion accessories and other products for its customers,
including home dcor retailers, corporate buyers and boutique shops.
11.

Youngs invested substantial resources, including significant time and money,

creating, developing, manufacturing, marketing and protecting its intellectual property rights in its
unique and distinct indoor snowball fight kit (Snowball Fight Kit), a consumer retail product.
12.

Youngs Snowball Fight Kit has a readily identifiable expression and appearance,

with a metal bucket and plush, embroidered snowballs, and distinct text, color, size and shape.
13.

Youngs Snowball Fight Kits distinct and unique design includes a look and feel

that is readily identifiable as being Youngs Snowball Fight Kit product, including its plush,
embroidered white snowballs with black eyes, a carrot nose and smiling face with pink cheeks, its
distinctive bucket coloring and bucket shape with metal handle, its snowball and snowflake design,
and its compact size (Snowball Fight Kit Trade Dress). A copy of images of the Snowball Fight
Kit are attached as Exhibit A.
14.

Youngs also owns the copyright in the 2-D artwork and sculptural authorship for

the Snowball Fight Kit, registered with the United States Copyright Office on January 27, 2012
(Snowball Fight Kit Copyright). A copy of the Copyright Registration No. VA0001803282 is
attached as Exhibit B.
15.

Youngs named, marketed and sold the Snowball Fight Kit nationwide on its

website, in showrooms and in its catalogue, in connection with Youngs logo, and using the
trademarks Snowball Fight Kit and Snowball Fight (collectively, Youngs Snowball Fight
3

2:14-cv-14898-TGB-MKM Doc # 1 Filed 12/27/14 Pg 4 of 20

Pg ID 4

Marks), indicating and establishing: Youngs brand name for the Snowball Fight Kit; its creation,
design and manufacturing of the Snowball Fight Kit; and to promote the Snowball Fight Kit as
Youngs product.
16.

Youngs invested substantial effort over a long period of time, including the

expenditure of substantial sums of time and money, to establish goodwill in its above Snowball
Fight Kit Copyright and Snowball Fight Marks, to cause consumers throughout the United States
to recognize and distinguish Youngs Snowball Fight Kit as originating from Youngs.
17.

The value of the goodwill developed in Youngs Snowball Fight Kit Copyright and

Snowball Fight Marks does not provide a precise monetary calculation; however, Youngs is a
unique provider of indoor snowball fight kits within the United States and is widely known as the
provider of Youngs Snowball Fight Kit, and the value of Youngs goodwill is substantial.
18.

Youngs advertises its Snowball Fight Kit on its website, in showrooms and in its

catalogue, with significant sales generated from these sources.

19.

Youngs has expended substantial sums of time, money, effort and resources to

protect Youngs intellectual property rights in its Snowball Fight Kit, including providing
infringement notices and incurring legal costs for related enforcement.
20.

Personal Creations is an e-commerce retailer that designs, develops and delivers

flowers, giftware and personalized gifts.

21.

Between 2011 and 2013, Personal Creations purchased certain units of Snowball

Fight Kits from Youngs.

22.

The above transactions included 5,008 Snowball Fight Kits that Personal Creations

purchased from Youngs in 2013 for $20,132.16, with Youngs timely invoicing Personal
Creations for this purchase on October 2, 2013 (the October 2, 2013 Invoice). A copy of the
4

2:14-cv-14898-TGB-MKM Doc # 1 Filed 12/27/14 Pg 5 of 20

Pg ID 5

October 2, 2013 Invoice is attached as Exhibit C.

23.

Personal Creations paid $5,089.65 of the October 2, 2013 Invoice but failed to pay,

and remains delinquent for, the $15,042.51 balance. See Affidavit of Matt Darr, dated December
27, 2014 (Darr Affidavit, copy attached as Exhibit D).
24.

Upon information and belief, in 2014, Personal Creations began manufacturing a

knockoff of Youngs Snowball Fight Kit (the PC Knockoff). Attached as Exhibit E is a copy
of the web page from Personal Creations web site featuring the PC Knockoff; attached as Exhibit
F is a photograph of a PC Knockoff which Personal Creations sold to a third-party retailer.
25.

The composition and appearance of the PC Knockoff is substantially and

confusingly similar to Youngs Snowball Fight Kit. Id.

26.

Upon information and belief, in 2014, Personal Creations, without authorization

from Youngs, began marketing, prominently advertising and selling its PC Knockoff on its
website (www.PersonalCreations.com) and catalogue, and through the Walmart.com website,
using the names Snowball Fight In A Bucket and Personalized Snowball Fight In A Bucket.
27.

Personal Creations use of the composition and appearance of Youngs Snowball

Fight Kit, and use of marks that copy or are colorable imitations of Youngs Snowball Fight Marks,
are likely to cause confusion, mistake, and deceive purchasers and potential purchasers in the
marketplace, inducing purchases of PC Knockoffs based on mistaken identity and the good will of
Youngs Snowball Fight Kit.
28.

Personal Creations above conduct caused Youngs substantial damages, including,

without limitation: lost revenues and profits; lost customers and market share; harm to reputation;
loss of goodwill and standing in the community; damage to business reputation; loss of business
opportunities and earning potential; devaluation of Youngs brand and Snowball Fight Marks; and
5

2:14-cv-14898-TGB-MKM Doc # 1 Filed 12/27/14 Pg 6 of 20

Pg ID 6

attorney fees and expenses.

COUNT I
VIOLATION OF THE FEDERAL COPYRIGHT ACT OF 1976. 17 U.S.C. 101 et seq.
29.

Youngs incorporates its above allegations as if fully stated herein.

30.

Youngs is the sole owner of its valid Snowball Fight Kit Copyright in the 2-D

artwork and sculptural authorship claimed in Youngs Snowball Fight Kit, which was created in
2010 and registered with the United States Copyright Office on January 27, 2012. See Exhibit B.
31.

Youngs complied in all respects with 17 U.S.C. 101, et seq., and secured

exclusive rights and privileges in and to its Snowball Fight Kit Copyright of the 2-D artwork and
sculptural authorship claimed in the Youngs Snowball Fight Kit.
32.

The 2-D artwork and sculptural authorship claimed in Youngs Snowball Fight Kit

as a whole does not affect the cost or quality of Youngs Snowball Fight Kit or serve any functional
purpose, and is not the only option for the design of an indoor snowball fight kit.
33.

As alleged, supra, Personal Creations clearly had access to the Youngs Snowball

Fight Kit.
34.

Youngs did not authorize Personal Creations copying of constituent elements that

are original to Youngs Snowball Fight Kit and containing Youngs distinctive copyrighted 2-D
architectural artwork and sculptural authorship, including its plush, embroidered white snowballs
with black eyes, a carrot nose and smiling face with pink cheeks, its distinctive bucket coloring
and bucket shape with metal handle, its snowball and snowflake design, and its compact size. See
Exhibit A, supra.
35.

The PC Knockoff is clearly substantially similar to the protectable copyright

elements of Youngs Snowball Fight Kit. See Exhibits E and F, supra.

6

2:14-cv-14898-TGB-MKM Doc # 1 Filed 12/27/14 Pg 7 of 20

36.

Pg ID 7

Youngs did not authorize Personal Creations marketing, manufacturing and

distribution of the substantially and confusingly similar PC Knockoff to actual and potential
customers and third party retailers, inducing, causing or materially contributing to the infringing
conduct of purchasers of the PC Knockoff.
37.

Personal Creations conduct of copying Youngs Snowball Fight Kit, and Personal

Creations marketing, manufacturing and distributing its PC Knockoff to actual and potential
customers and third party retailers, violates the exclusive rights belonging to Youngs as the owner
of the copyright to the 2-D artwork and sculptural authorship claimed in the Youngs Snowball
Fight Kit, including, without limitation, Youngs rights pursuant to 17 U.S.C. 106.
38.

As discussed supra, Personal Creations had actual or constructive knowledge of

Youngs Snowball Fight Kit Copyright since 2011 and willfully engaged in, and is willfully
engaging in, infringement of Youngs copyright in the 2-D artwork and sculptural authorship
claimed in the Youngs Snowball Fight Kit, in conscious disregard of Youngs rights, particularly
where Personal Creations has access to Youngs Snowball Fight Kit, knew Youngs Snowball
Fight Kit existed, and willfully copied a substantial portion of the copyrighted product.
39.

As a direct and proximate result of Personal Creations above willful and wrongful

conduct, Personal Creations realized and continues to realize profits and other benefits rightfully
belonging to Youngs and Youngs has sustained injuries and damages, including, inter alia: lost
revenue and profits; loss of customers and market share; harm to reputation; loss of goodwill and
standing in the community; damage to business reputation; and attorneys fees and expenses and
should be awarded maximum statutory or actual damages and profits, injunctive relief, and costs
of this action pursuant to 17 U.S.C. 502, 504 and 505.
COUNT II
7

2:14-cv-14898-TGB-MKM Doc # 1 Filed 12/27/14 Pg 8 of 20

Pg ID 8

FEDERAL TRADE DRESS INFRINGEMENT. 15 U.S.C. 1125(a)

40.

Youngs incorporates its above allegations as if fully stated herein.

41.

Youngs Snowball Fight Kit is a popular consumer retail product which Youngs

has been selling to retailers and customers since 2011, including, but not limited to, Personal
Creations.
42.

Youngs Snowball Fight Kit is heavily promoted and advertised nationwide at

showrooms and tradeshows across the nation, on the YoungsInc.com website and in the Youngs
customer catalogue, and has gained increasing popularity among consumers.
43.

Since 2011, Youngs sold over 250,000 Snowball Fight Kits generating revenue for

Youngs in excess of $1,250,000.00.

44.

Due to the popularity and high demand of Youngs Snowball Fight Kit as a

consumer retail product, Youngs Snowball Fight Kit developed a unique and distinctive trade
dress which is not functional and readily identifiable to its customers and the public, identifying
Youngs rather than the Youngs Snowball Fight Kit, itself.
45.

Subsequent to Youngs use and adoption of the Youngs Snowball Fight Kit Trade

Dress, Personal Creations developed, advertised and sold, and continues to sell, its PC Knockoff
that uses a trade dress that is identical or confusingly similar to the Youngs Snowball Fight Kit
Trade Dress, incorporating the overall design of the Youngs Snowball Fight Kit Trade Dress,
including the distinctive 2-D and sculptural elements, inter alia, its plush, embroidered white
snowballs with black eyes, a carrot nose and smiling face with pink cheeks, its distinctive bucket
coloring and bucket shape with metal handle, its snowball and snowflake design, and its compact
size. See Exhibit A, E and F, supra.
46.

Personal Creations use of Youngs Snowball Fight Kit Trade Dress in its PC
8

2:14-cv-14898-TGB-MKM Doc # 1 Filed 12/27/14 Pg 9 of 20

Pg ID 9

Knockoff encompasses features which are likely to cause, and has caused, confusion and deception
as to the affiliation, connection, or association of Personal Creations with Youngs, and constitutes
a false designation of the origin of Personal Creations products, particularly the origin of the PC
Knockoff.
47.

Personal Creations acts of copying Youngs Snowball Fight Kit Trade Dress were

done knowingly and intentionally to cause confusion, mistake or deceive where Personal Creations
had access to Youngs Snowball Fight Kit, actual or constructive knowledge that Youngs
Snowball Fight Kit existed since 2011, and willfully copied a substantial portion of the Youngs
Snowball Fight Kit Trade Dress.
48.

Section 43(a) of the Lanham Act, 15 U.S.C. 1125(a), provides in pertinent part

that [a]ny person who in connection with any goods or servicesuses in commerce any word,
term, name, symbolor any false designation of origin, false or misleading description of fact, or
false or misleading representation of fact, which is likely to cause confusion, or to cause mistake,
or to deceive as to affiliationor as to origin, sponsorship or approval ofgoods [or]
servicesshall be liable in a civil action .
49.

Personal Creations activities of making, advertising and selling its PC Knockoff

embodying Youngs Snowball Fight Kit Trade Dress, as alleged above, are prohibited by the
Lanham Act, 15 U.S.C. 1125(a), and constitutes trade dress infringement.
50.

Personal Creations conduct caused significant damage to Youngs, and will

irreparably damage Youngs unless the continuation of this conduct is enjoined by this Court.
51.

As a direct and proximate result of Personal Creations above willful trade dress

infringement, Youngs sustained, and is sustaining, significant injuries and damages, including,
inter alia: lost revenue and profits; loss of customers and market share; damage to business
9

2:14-cv-14898-TGB-MKM Doc # 1 Filed 12/27/14 Pg 10 of 20

Pg ID 10

reputation; dilution of trade dress; loss of goodwill and standing in the community; and the costs
of this action including attorney fees and expenses and should be awarded injunctive relief,
maximum damages and profits, including treble damages, and costs of this action pursuant to 15
U.S.C. 1114-1117.
52.

Youngs does not have an adequate remedy at law.

53.

No previous injunctive relief has been awarded with respect to this matter in this

case or in any other case.

COUNT III
LANHAM ACT VIOLATIONS
[TRADEMARK INFRINGEMENT & UNFAIR COMPETITION]
54.

Youngs incorporates its above allegations as if fully stated herein.

55.

Without Youngs permission, Personal Creations manufactured, marketed and sold,

and continues to manufacture, market and sell, its substantially and confusingly similar PC
Knockoff in interstate commerce, which copy or imitate Youngs distinctive and unique elements
including, but not limited to, Youngs Snowball Fight Kit look, feel and trade dress, and that use
marks that copy or are colorable imitations of Youngs Snowball Fight Marks.
56.

Section 43(a) of the Lanham Act, 15 U.S.C. 1125(a)(1), provides in pertinent part

that [a]ny person who in connection with any goods or servicesuses in commerce any word,
term, name, symbolor any false designation of origin, false or misleading description of fact, or
false or misleading representation of fact, which is likely to cause confusion, or to cause mistake,
or to deceive as to affiliationor as to origin, sponsorship or approval ofgoods [or]
servicesshall be liable in a civil action .
57.

Section 43(a) of the Lanham Act, 15 U.S.C. 1125(a)(2), provides in pertinent park
10

2:14-cv-14898-TGB-MKM Doc # 1 Filed 12/27/14 Pg 11 of 20

Pg ID 11

that [a]ny person who in connection with any goods or servicesuses in commerce any word,
term, name, symbolor any false designation of origin, false or misleading description of fact, or
false or misleading representation of fact, whichin commercial advertising or promotion
misrepresents the nature, characteristics, qualities, or geographic origin of his or her or another
persons goods or services, or commercial activitiesshall be liable in a civil action .
58.

The above acts of Personal Creations constitutes:

a.

Use of a misleading name or symbol;

b.

A false designation of origin;

c.

A false or misleading representation of fact;

d.

A false or misleading description of fact; and

e.

Misrepresentations of the nature, characteristics and qualities of Personal

Creations commercial activities;

that causes and are likely to continue to cause: confusion or mistake as to the affiliation of Personal
Creations with Youngs; confusion, mistake or deception to the effect that Youngs sponsors or
approves of Personal Creations PC Knockoff and use of Youngs Snowball Fight Kit Trade Dress
and Snowball Fight Marks; and misrepresentations as to the nature, characteristics and qualities of
the PC Knockoff in violation of Section 43(a) of the Lanham Act.
59.

Personal Creations above acts were done knowingly and intentionally to cause

confusion, mistake or deceive consumers where Personal Creations had access to Youngs
Snowball Fight Kit, actual or constructive knowledge that Youngs Snowball Fight Kit existed
since 2011, and willfully used trade dress and marks that mimic Youngs Snowball Fight Kit Trade
Dress and Snowball Fight Marks.
60.

Personal Creations is in direct competition with Youngs where they are providing
11

2:14-cv-14898-TGB-MKM Doc # 1 Filed 12/27/14 Pg 12 of 20

Pg ID 12

indoor snowball fight kits to third party retailers and customers nationwide.
61.

Personal Creations on-going acts of infringement in violation of Section 43(a) of

the Lanham Act inflicted, and continue to inflict, damages and irreparable harm to Youngs.
62.

As a direct and proximate result of Personal Creations above violations of the

Lanham Act, Youngs sustained, and is sustaining, significant injuries and damages, including,
without limitation: severe restriction to, and loss of, business opportunities and earning potential;
lost revenue and profits; loss of customers and market share; devaluation of Youngs brand and
Snowball Fight Marks; loss of good will and standing in the community; damage to business
reputation; and attorney fees and expenses.
63.

Youngs does not have an adequate remedy at law and will be further irreparably

harmed if Personal Creations above conduct is not enjoined.

64.

No previous injunctive relief has been awarded with respect to this matter in this

case or in any other case.

COUNT IV
TRADEMARK INFRINGEMENT
[MICHIGAN COMMON LAW]
65.

Youngs incorporates its above allegations as if fully stated herein.

66.

Youngs first owned and used in commerce its Snowball Fight Marks: Snowball

Fight Kit and Snowball Fight in 2011.

67.

Since 2011, Youngs has invested substantial resources, including time and money,

in marketing and advertising its Snowball Fight Marks to cause consumers throughout the United
States to recognize and distinguish Youngs Snowball Fight Kit as originating from Youngs.
68.

After Youngs first owned and used in commerce its Snowball Fight Marks, without
12

2:14-cv-14898-TGB-MKM Doc # 1 Filed 12/27/14 Pg 13 of 20

Pg ID 13

Youngs permission, Personal Creations used in commerce and incorporated into their commercial
activities, marks that copy or are colorable imitations of Youngs Snowball Fight Marks.
69.

Personal Creations use of marks that copy or are colorable imitations of Youngs

Snowball Fight Marks is likely to cause confusion and mistake, and is likely to deceive actual and
potential purchasers in the marketplace as to the source of the PC Knockoff.
70.

As a result of the above violations, Personal Creations has become unjustly

enriched and Youngs incurred extensive damages, including: lost revenue and profits; loss of
customers and market share; reduction in the value of Youngs Snowball Fight Kit; severe
restriction to, and loss of, business opportunities and earning potential; devaluation of Youngs
brand and Snowball Fight Marks; loss of good will and standing in the community; damage to
business reputation; and attorney fees and expenses.
71.

As a result of the above violations, Youngs suffered irreparable harm and will

continue to suffer irreparable harm, unless Personal Creations is enjoined.

COUNT V
UNFAIR COMPETITION
[MICHIGAN COMMON LAW]
72.

Youngs incorporates its above allegations as if fully stated herein.

73.

Without Youngs permission, Personal Creations manufactured, marketed and sold,

and continues to manufacture, market and sell, its substantially and confusingly similar PC
Knockoff, which copies or imitates Youngs distinctive and unique elements including, but not
limited to, Youngs Snowball Fight Kit look, feel and trade dress, and uses marks that copy or are
colorable imitations of Youngs Snowball Fight Marks.
74.

The above acts of Personal Creations constitutes:

13

2:14-cv-14898-TGB-MKM Doc # 1 Filed 12/27/14 Pg 14 of 20

a.

Use of a misleading name or symbol;

b.

A false designation of origin;

c.

A false or misleading representation of fact; and

d.

A false or misleading description of fact;

Pg ID 14

that causes and are likely to continue to cause confusion or mistake as to the affiliation of Personal
Creations with Youngs, and to cause confusion, mistake or deception as to Youngs sponsorship
or approval of Personal Creations PC Knockoff and use of Youngs Snowball Fight Kit Trade
Dress and Snowball Fight Marks in violation of Michigan common law unfair competition.
75.

Personal Creations above acts were done knowingly and intentionally to cause

confusion, mistake or deceive consumers where Personal Creations had access to Youngs
Snowball Fight Kit, actual or constructive knowledge that Youngs Snowball Fight Kit existed
since 2011 and willfully used trade dress and marks that mimic Youngs Snowball Fight Kit Trade
Dress and Snowball Fight Marks.
76.

Personal Creations is in direct competition with Youngs both through product

competition and geographic competition, as they are also marketing and manufacturing indoor
snowball fight kits for sale to third party retailers and customers nationwide.
77.

As a direct and proximate result of Personal Creations above violations, Youngs

sustained, and is sustaining, significant injuries, damages and irreparable harm, including, without
limitation: severe restriction to, and loss of, business opportunities and earning potential; lost
revenue and profits; loss of customers and market share; devaluation of Youngs brand and
Snowball Fight Marks; loss of good will and standing in the community; damage to business
reputation; and attorney fees and expenses.
78.

Youngs has no adequate remedy at law and will incur further irreparable harm if
14

2:14-cv-14898-TGB-MKM Doc # 1 Filed 12/27/14 Pg 15 of 20

Pg ID 15

Personal Creations is not enjoined.

79.

No previous injunctive relief has been awarded with respect to this matter in this

case or in any other case.

COUNT VI
BREACH OF CONTRACT
80.

Youngs incorporates its above allegations as if fully stated herein.

81.

Personal Creations contracted with Youngs for the purchase of 5,008 Snowball

Fight Kits from Youngs in 2013 for $20,132.16. See October 2, 2013 Invoice, Exhibit C, supra.
82.

Youngs timely delivered the subject Snowball Fight Kits but Personal Creations

breached its obligations pursuant to the above contract by, inter alia, failure to pay Youngs the
full amount due.
83.

As a direct and proximate result of Personal Creations above breach of its above

contractual obligations to Youngs, Youngs sustained, and is sustaining, significant damages,

including loss of the balance due of $15,042.51 under the October 2, 2013 Invoice, interest,
attorney fees and costs.
COUNT VII
UNJUST ENRICHMENT
84.

Youngs incorporates its above allegations as if fully stated herein.

85.

Personal Creations has been enriched, and will be further enriched, by its wrongful

appropriation and retention of Youngs Snowball Fight Kits and related intellectual property rights
without compensation to Youngs.
86.

It is unjust and inequitable for Personal Creations to retain the above benefits

without properly compensating Youngs for the above Snowball Fight Kits and related intellectual
15

2:14-cv-14898-TGB-MKM Doc # 1 Filed 12/27/14 Pg 16 of 20

Pg ID 16

property rights, and Youngs is entitled to be compensated for the value Personal Creations above
unjust enrichment and retention of benefits.
COUNT VIII
ACCOUNT STATED. MCL 600.2145.
87.

Youngs incorporates the above allegations as if fully stated herein.

88.

At Personal Creations request, Youngs sold and delivered to Personal Creations

5,008 units of Youngs Snowball Fight Kits for the purchase price of $20,132.16.
89.

On October 2, 2013, Youngs timely invoiced Personal Creations for the above

Youngs Snowball Fight Kits, which statement of account Personal Creations partially paid
without a timely objection. See, October 2, 2013 Invoice, Exhibit C, supra; and Darr Affidavit,
Exhibit D, supra.
90.

Personal Creations did not pay the balance owing on the above account, despite

Youngs demands for payment.

91.

Personal Creations is indebted to Youngs for the balance of the above account in

the amount of $15,042.51, together with interest, as evidenced by the attached Darr Affidavit and
accompanying October 2, 2013 Invoice, Exhibit D, supra.
COUNT IX
INJUNCTION
92.

Youngs incorporates the above allegations as if fully stated herein.

93.

As alleged above, since 2014, Personal Creations willfully infringed and violated,

and continues to willfully infringe and violate, Youngs copyright, trade dress, trademark, and
unfair competition rights in Youngs Snowball Fight Kit, Snowball Fight Kit Copyright and
Snowball Fight Marks by manufacturing, marketing and selling the PC Knockoff.
16

2:14-cv-14898-TGB-MKM Doc # 1 Filed 12/27/14 Pg 17 of 20

94.

Pg ID 17

There is imminent likelihood of continuing irreparable harm to Youngs if Personal

Creations is not enjoined from continuing to manufacture, market and sell the PC Knockoff
because of the actual and potential likelihood of confusion in the marketplace.
95.

There is no adequate remedy at law for Youngs for Personal Creations above

willful violations, where money damages alone will not restore Youngs actual and threatened
loss, including, inter alia: loss of business opportunities and earning potential; loss of goodwill
and standing in the community; loss of customers and market share; and damage to business
reputation.
96.

The harm to Youngs resulting from the ongoing wrongful acts of Personal

Creations outweighs any possible harm to Personal Creations if the injunction is entered.
97.

Personal Creations manufacturing and distribution of PC Knockoff damaged and

will continue to damage Youngs and the public at large.

98.

An injunction is in the public interest.

WHEREFORE, Plaintiff, Youngs Incorporated, respectfully requests entry of a judgment

against Defendant, Provide Creations, Inc., d/b/a Personal Creations, providing the following
relief:
A.

Awarding Youngs its actual, consequential and compensation damages;

B.

Preliminarily and permanently restraining and enjoining Personal Creations, its

officers, directors, agents, servants, employees, representatives, attorneys, subsidiaries, affiliates

or other related companies, successors, assigns, and all others in active concert or participation
with Personal Creations, from manufacturing and distributing the PC Knockoff and using marks
that mimic and resemble Youngs Snowball Fight Marks, without Youngs consent, or otherwise
infringing on Youngs intellectual property rights or any other rights in any matter;
17

2:14-cv-14898-TGB-MKM Doc # 1 Filed 12/27/14 Pg 18 of 20

C.

Pg ID 18

Ordering Personal Creations to account to Youngs for all gains, profits and

advantages derived by their infringement of Youngs Snowball Fight Kit Copyright, Snowball
Fight Kit Trade Dress, and Snowball Fight Mark and such damages are proper;
D.

Awarding Youngs maximum allowable actual or statutory damages for Personal

Creations willful copyright infringement and inducement;

E.

Awarding Youngs maximum allowable damages, including treble damages, for

Personal Creations willful trade dress infringement;

F.

Awarding maximum allowable damages, including treble damages, for Personal

Creations willful trademark infringement;

G.

Awarding Youngs post-judgment statutory interest;

H.

Awarding Youngs its costs, attorneys fees and disbursements in this action; and

I.

Awarding Youngs such other relief as this Court deems just and equitable.
Respectfully submitted,
Tishkoff & Associates PLLC

/s/ William G. Tishkoff

By: William G. Tishkoff (P45165)
And: Sarah L. Wixson (P76496)
And: Michael R. Wolin (P77038)
And: Christopher M. Vukelich (P76420)
Attorneys For Plaintiff
407 North Main Street
Ann Arbor, MI 48104
December 27, 2014

18

2:14-cv-14898-TGB-MKM Doc # 1 Filed 12/27/14 Pg 19 of 20

Pg ID 19

2:14-cv-14898-TGB-MKM Doc # 1 Filed 12/27/14 Pg 20 of 20

Pg ID 20

JURY TRIAL DEMAND

NOW COMES Plaintiff, Youngs Incorporated, through its attorneys, Tishkoff &
Associates PLLC, and hereby demands trial by jury on all issues in the above matter properly
triable thereby.
Respectfully submitted,
Tishkoff & Associates PLLC
/s/ William G. Tishkoff
By: William G. Tishkoff (P45165)
And: Sarah L. Wixson (P76496)
And: Michael R. Wolin (P77038)
And: Christopher M. Vukelich (P76420)
Attorneys For Plaintiff
407 North Main Street
Ann Arbor, MI 48104
December 27, 2014

20